The United States Court of Appeals for the Eighth Circuit recently affirmed the ruling of the United States District Court for the District of Nebraska on claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA). These claims were filed by a former military service member against his employer for allegedly discriminating and retaliating against him due to his prior service in the military and his decision to exercise certain statutory rights. Neither claim withstood a motion for summary judgment.
Facts of the Case
David McConnell began serving on active duty in the United States Army in 1999 and retired in 2008. Prior to his retirement, McConnell sustained two long-term disabilities: (1) post-traumatic stress disorder, and (2) a back injury which prevented him from lifting more than forty pounds.
In November 2012—four years after his retirement—McConnell interviewed for the position of service center manager for Anixter, Inc.’s Grand Island, Nebraska facility. McConnell informed the hiring supervisor of his service-related disabilities. Anixter replied it would have no problem accommodating his disabilities. The hiring supervisor told McConnell that his military experience was viewed positively by Anixter because the skillset gained through his service would be needed for McConnell’s new supervisory position.
McConnell obtained the position of service center manager, in which he directly supervised several Anixter employees. During his time in this supervisory position McConnell had two separate altercations with subordinates. The first altercation occurred in May 2013, involving McConnell’s use of vulgarity with the employee under him. McConnell’s supervisor issued him an oral warning not to use such language toward a subordinate. The second occurred in August 2013, involving the same behavior. Following the second altercation, McConnell’s supervisor issued a written warning to McConnell notifying him that if he did not refrain from using vulgar language and learn to control his temper, further disciplinary action, including termination, might become necessary.
Following the written warning, McConnell maintained his position without incident until December 2014. At this time, McConnell and his supervisor had a strong disagreement during a phone conversation. This disagreement surrounded changes the supervisor wanted to implement regarding McConnell’s supervisees’ work schedules. By the end of the phone conversation the dispute had escalated to the point that McConnell requested a break to allow him to manage his PTSD. Following this request, his supervisor sent McConnell home. McConnell was fired from Anixter four days later.
Employee’s Claims and Suit
McConnell filed suit against Anixter in federal district court in January 2017. Filed under the Uniformed Services Employment and Reemployment Rights Act (USERRA), McConnell alleged that Anixter discriminated and retaliated against him because of his prior service in the military and his decision to exercise certain statutory rights. The district court entered summary judgment on all issues for the employer.
The issue on appeal involved whether the motivating factor in Anixter’s decision to terminate McConnell was in violation of USERRA. That federal law precludes an employer from allowing an individual’s military status or an individual’s decision to exercise rights set forth under USERRA to motivate an employer’s adverse employment action against an employee.
To establish that military status was a motivating factor, the party invoking protection under USERRA may use three factors. The first factor is “the employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity.” The second factor is “the proximity in time between the employee’s military activity and the adverse employment action.” The third factor considers “any inconsistencies between the proffered reason and other actions of the employer.”
McConnell was unable to establish the first factor due to the fact that McConnell’s hiring supervisor expressed a positive outlook on McConnell’s military experience during the interview process. McConnell was unable to establish the second factor due to the fact that four years had passed between the time McConnell was on active duty and the time he was hired by Anixter. Because of this extended period, the inference that his participation in the military motivated Anixter’s decision to terminate McConnell was highly unsupported.
Lastly, McConnell was unable to establish the third factor because both parties agreed the altercation between McConnell and his supervisor left McConnell extremely frustrated. It was also undisputed that McConnell’s frustration at this event required him to take a break from the situation in order to manage his stress. Because this undisputed altercation occurred after McConnell received written notice that he could face termination if he failed to learn to control his temper, there are no inconsistencies between the proffered reason and other actions of the employer. In sum, McConnell failed to establish any of the three factors, and as such, he failed to establish that his military status was a motivating factor in the termination of his employment. Therefore, he could not proceed to trial on his USERRA claim.
Bottom Line for Employers
USERRA offers strong protection for service member employees. Prevailing in court on such a claim can be a challenge. If faced with a thorny issue involving a service member employee, or any employee, you are encouraged to consult with an experienced attorney to avoid any issue that could land you in court. Bonnie M. Boryca, attorney at Erickson | Sederstrom, PC, in Omaha, Nebraska, was assisted by second-year law student and E|S law clerk Chelsey L. Gilinsky in writing this article. Ms. Boryca works with employers, executives, and employees and can be reached at 402.397.2200 or boryca@eslaw.com.